The Electronic Communications and Transactions Act, Act 25 of 2002 (‘ECTA’) introduced the concept of signing a document electronically. It defines an ‘electronic signature‘ as “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature“. The ECTA further provides (Section 13(2)) that “an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form”. This clearly indicates that electronic signatures are legally recognised in South African law.
So let’s analyse exactly what all this means. It is important to note that the signature per se is described as data and this must be borne in mind for the purposes of this discussion. This signature must unequivocally fulfill three functions: verify the sender’s identity, intention to sign and authenticate the document. There are potentially 4 types of electronic signature: two are prescribed by the ECTA, namely Standard Electronic Signature (‘SES’) and Advanced Electronic Signature (‘AES’). The two other types are when the parties formally agree on a format, and lastly, if such implied agreement can be deduced from the facts (as discussed in the case of Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and another in 2015 – referred to below as ‘the Spring Forest case’.
Let’s deal with exclusions. I mentioned wills in the previous insert. The ECTA excludes the following documents from being signed electronically (SES or AES), namely agreements pertaining to the sale of immovable property, long term (20 years or more) property leases and bills of exchange.
The SES can be brought about by scanning the signatory’s handwritten signature or drawing it by using a digital tool (This method is now common place and used especially by courier companies) . It is the default electronic signature if the type of electronic signature has not been specified by the parties but it will still only be valid if the following requirements have been met:
* It indentifies the signatory or sender
* It indicates his/her approval of the information communicated
* Given the circumstances, this method is reliable and appropriate
* It is time stamped
This type of electronic signature is the most commonly used, such as the ‘click and accept’ box format pertaining to various internet transactions commonly used by most people reading this article and, if you want to go one step further, the daily response to an email you may have received. The key issue at the end of the day will be proof i.e. who actually ticked the box (e.g. accepting the business’ T&C) or replied to the email (see discussion below).
However reservations have been expressed about all of the above applications/variations of SES not being reliable due to the relatively high risk of counterfeit. Accordingly, when using any form of electronic signature it is imperative to take cognisance of and apply the security measures prescribed by Protection of Personal Information Act, Act number 4 of 2013 (‘POPI’) namely ‘appropriate, reasonable technical and organisational measures’ complying with ‘generally accepted information security practices measures’.
The ECTA prescribes the use of the AES where, other than the exclusions listed above, the law requires a document to be in writing and signed. Examples are suretyship agreements and signing as a Commissioner of Oaths. It is defined as an electronic signature that has been accredited by the South African Accreditation, and Authority (‘SAAA’) as provided by section 37 of the ECTA. The criteria, standards and processes have been provided by the SAAA. Once an SES becomes an AES, a certificate is issued by a product or service provider approved and appointed by the SAAA. This goes hand in hand with ‘face to face check of an ID document a trained agent of a government accredited certificate authority‘.
In Part 3 we will discuss the ‘tick & accept box’ concept.
Copyright Adv Louis Nel t/a louis-THE-lawyer
April 11 2020
DISCLAIMER – Each case depends on its own facts and merits – the above does not constitute advice – independent advice should be obtained in all instances